The Scope of Trademark Law in the Age of the Brand Persona

11 Pages Posted: 3 May 2012 Last revised: 4 May 2012

Laura A. Heymann

College of William & Mary - Marshall-Wythe School of Law

Date Written: May 2, 2012

Abstract

This response to Mark P. McKenna's A Consumer Decision-Making Theory of Trademark Law, 98 Va. L. Rev. 67 (2012), applauds Prof. McKenna for arguing in favor of more rigorous evidentiary constraints on the scope of trademark law but cautions against restricting that scope too greatly. When brands are commonly described as having personalities, and marketers have long talked about brands in anthropological terms, we should not be surprised when both brand owners and consumers see brands as capable of suffering reputational injuries. Prof. McKenna's article appears to favor excluding such harms altogether from unfair competition law; I am not so sure. Regardless, Prof. McKenna's thoughtful attention to some of our accepted trademark discourse provides an opportunity for trademark scholarship to ask additional questions about trademark law's scope in the age of the brand persona and about how we might best reconcile the interests of producers and consumers.

Keywords: trademark, reputation, brands, dilution, infringement, persona

Suggested Citation

Heymann, Laura A., The Scope of Trademark Law in the Age of the Brand Persona (May 2, 2012). Virginia Law Review In Brief, Forthcoming; William & Mary Law School Research Paper No. 09-212. Available at SSRN: https://ssrn.com/abstract=2049871

Laura A. Heymann (Contact Author)

College of William & Mary - Marshall-Wythe School of Law ( email )

613 South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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